In the last month, leaked documents have revealed the existence of two government surveillance programs which collect “metadata” (i.e. “data that describes data”) about customer telephone calls and email from the TelCos and ISPs that route the data. For now, the details aren’t important; we’ll get to that when we talk about these programs and the Fourth Amendment.

First, however, I want to deal with some of the surrounding issues, because As I have written about these stories elsewhere (usually under the tongue-in-cheek rubric of “Obamascare”) I have noticed two familiar themes coming out, both of which originate from the epistemological skepticism that I have described in previous posts: Deference and conservatism.

I. Deference and secrecy

Over the years, I have been faulted for showing excessive deference to some classes of experts, and, by an almost entirely different group of critics, for showing too little deference to other classes of experts.

On the one hand, I have emphasized the importance of Congressional deference to expertise. This has typically come into play in arguments about the military, in regard to which I have faulted Congressional activism on the grounds that Congress has neither appropriate incentives nor expertise to wisely exercise its unquestioned power over the military. In such a situation, wise managers defer to counsel. I have therefore derided Congress for decisions to purchase what the military doesn’t want (or to scrap that which it does), or to impose (or prohibit) the so-called “Don’t Ask Don’t Tell” policy. Such things are “interference”:

I believe that we should give a great deal of deference to the professionals in a given field—the people who are hands-on, the people on the front lines. … For a fairly extreme example, an issue on which I find it appropriate that my position is [unqualified] deference to the professionals, my position on “Don’t Ask Don’t Tell” is essentially “whatever the military wants.” If the military want it, [10 U.S.C.] § 654 should stay; if they want it gone, it should be repealed. I have no idea if gays serving openly in the military is good, bad, or indifferent to the ability of the military to conduct operations. Congress certainly doesn’t. And if you aren’t presently serving on active duty in the United States military, neither do you. The best judges of what hurts the operational readiness of the United States military and what helps it—the sole criterion where this issue is concerned—is the United States military themselves. Their word should be decisive.

… [T]hat’s an extreme if not unique example [of my willingness to defer]…. I counsel deference[] in the proportion dictated by specific context, not abdication of judgment. The military is an exceptional context, given their mission and the imminent risk to their lives and limbs; it accordingly gets exceptionally high deference. 1

The limits of Congressional competence, especially when amplified by institutional dysfunction, demand that Congress must exercise its authority to “raise and support armies, … provide and maintain a navy[, and] … make rules for the government and regulation of the land and naval forces” delicately and with great deference to the military. 2

I am not, however, a technocrat. 3 I have emphasized that while expertise is important, especially in technical fields, we do not surrender ultimate control of public policy to the experts. In a discussion about so-called “gender reassignment” framed around a case in which adoptive parents were acceding to a child’s request for the surgery, I noted that “[t]he anglo-american tradition has always deemed it appropriate for public policy to intervene in people’s lives when they propose to hurt others, and, in some cases, when they propose to hurt themselves.” The question, then, I said,

is in which cases should policy intervene? The case in which a child threatens to cause himself grave injury, and in which the parents are willing to facilitate rather than thwart that intent, is one in which society deems intervention appropriate. …

If the boy were schizophrenic and threatened to drill a hole in his head and the parents proposed to buy him the drill, he would be removed from the home. … And that would happen even if the consensus of the psychiatric community was that letting him drill a hole in his head was actually the only way that he could self-actualize and become the person he believes himself to be as he lies on the ground bleeding to death, because in the last analysis, public policy is informed by experts but is decided by the public. If the public thinks that the experts are as nuts as the boy, it can and will reject the expert opinion. The same thing goes for climate change, for example: There is an expert consensus that we’re responsible and public policy must do something. The public disagrees. Maybe the “experts” are right (I take no position on that) but a majority of the population isn’t willing to follow where the experts want to go, and so public policy will not go where the “experts” want it to go.

So the experts don’t have the final say—even if they’re right. But they aren’t necessarily right. Expertise is useful, but communities of experts are no less prone to trends and groupthink than any other community; arguably they are more so, and certainly the consequences are more dire. Doctors can make mistakes that last a moment and yet maim or kill patients; the medical community can makes mistakes that last decades and maim or kill thousands of patients. … [It's a good idea] to study the history of the eugenics movement, which at one time or another also commanded significant support in the medical communities of some countries, including this one, to say nothing of other social elites. Indeed, one of the most lauded (even feted) justices in this country’s history, Oliver Wendell Holmes, contemptuously dismissed people like me and our silly a priori moral arguments against eugenics. A law providing that “the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives”—people with a a low IQ—was perfectly constitutional, said Holmes, in the Supreme Court’s 8-1 decision in Buck v. Bell; “Three generations of imbeciles are enough.” 4 Happily, America at large was less open-minded than Holmes.

These are not contradictory propositions but two sides of same coin. In The Day After, I explained that conservatives have an epistemological skepticism that prizes tradition, experience, and “deference—not absolute deference, to be sure—to the experience of … those who are on the front lines of a problem. 5 Deference does not mean a surrender of ultimate control, it means an acknowledgment of the proper relationship between knowledge and decision, and candor about the limits of one’s own knowledge and presupposiions. Thus, in AMA v. Obamacare, for example, I pointed out that while my language in the DADT cases was strong, the military lies at the “extreme” of the principle “that we should give a great deal of deference to the professionals in a given field—the people who are hands-on, the people on the front lines.” 6 I emphasized that “I counsel deference, in the proportion dictated by specific context, not abdication of judgment. The military is an exceptional context, given their mission and the imminent risk to their lives and limbs; it accordingly gets exceptionally high deference. The same principle applies to other situations, but the level of deference is naturally far lower.” 7 It is lower in other cases sometimes because of the depth of knowledge required (not every field is nearly as recondite as some of its experts would like to think), sometimes because of the breadth of the field(s) involved (experts are also prone to siloing, and when a proposed regulation touches their field of expertise, they may be insensitive to other fields that it touches), sometimes because of the identity of the actor to whom deference is proposed (it is, of course, a very different matter to propose deference to the military on military affairs than to propose deference to Monsanto on ariculture policy), and sometimes all of the about. Thus, the opposition of the AMA to Obamacare was not decisive for me: It was a “useful datapoint[ ],” but “we cannot simply slam the door and declare that ‘the doctors have spoken, the matter is ended.'” 8

In brief, then: Deference never becomes abdication, but it can functionally resemble delegation; it is appropriate when specialist knowledge is needed that we cannot readily obtain, and, in the political context, it especially warranted when the actors to whom it is proposed to defer have incentives and positions that make them particularly apt to make the right decision. With these things in mind, let us consider the NSA programs.

The NSA programs are and must be subject to debate, weighing of tradeoffs, and oversight. That isn’t questioned. Rather, the questions are where that debate should take place and who should judge it. For almost any other program, the answer would be “the democratic process.” The problem with subjecting the NSA programs to the traditional models by which we do those things, however, is that very little of the information that we would need in order to have that debate is or can be available to the general public. The President and certain parts of his (or her) administration are privy to information that the general public isn’t and can’t be. And we can’t have a national (or even a Congressional) debate about a largely-secret program that responds to largely-secret needs for the same reason that you can’t have a debate about the implications of the Higgs Boson for supersymmetry with a fourth grader: A policy debate presupposes knowledge of the relevant issues and, if not of the outcomes of various choices, then at least enough information to draw rational inferences about them. An opinion, a bare, conclusory assertion, made without such knowledge, is not a debate position.

A public debate on the NSA program is therefore impossible and dangerous; it would weigh two unknown quantities against one another on an invisible scale. Accordingly, because much of the information that explains why the program is necessary and what the program does is classified, the answers to the questions above are clear. The primary locus of the debate must rest within the executive branch, subject to the judgment of the President, who is charged, before God and history, with protecting this country in light of knowledge that he has but which we may not have. That may be unsettling, but it is a necessary consequence of the epistemological limits just described.

That is an extraordinary situation—it’s dangerous, and it’s constitutionally unusual if not aberrant. To be sure, the founders were not the neurotic libertarians of today (more on this anon); they understood full well that state secrets came with the executive power that was reposed in the presidency. “Decision, activity, secrecy, and dispatch” must characterize the Presidency, wrote Hamilton in Federalist 70; a legislature “is unfit to exercise the executive power,” wrote John Adams in Thoughts on Government, “for want of two essential properties, secrecy and dispatch.” Nevertheless, the incipient danger in this situation 9 demands the oversight that is possible while retaining confidentiality, which is where the intelligence committees and the FISA courts are able to come into play. But the primary check on all this remains the President himself. And the extraordinary reality thus implied should induce us to be exceedingly careful about whom we elect. 10 If this is a trust that we must repose in the Presidency, we must perforce confide it to a chosen President, and because that is an awesome and extraordinary trust, we need to ensure that we are electing serious, sober, experienced, God-fearing men and women whom we can trust. Many of us think that we picked the wrong guy, but so what?

In this case, the duly-elected President of the United States, who is sworn to faithfully execute the Office of President of the United States and to preserve, protect and defend the Constitution of the United States, and who knows an awful lot more about the security exigencies that we face than you, me, or anyone else in the general population, has determined that this program is necessary for the national security of the nation. This is an exercise at the core of a president’s legal powers and the height of a president’s prudential authority. 11 If we should defer to his judgment on anything, this is it.

For sake of being clear, I should say explicitly: I should not be understood to be on the “pro-PRISM” side of a debate between people who are “pro-PRISM” and those who are “anti-PRISM.” My claim is that the general public lacks (and cannot be given) the information necessary to have that debate. That debate—the debate that the “anti-PRISM” folks are keen to have, the weighing of PRISM’s utility against its costs—must happen, but I am not taking a side in it. Rather, I am arguing that that debate must and can only take place within the walls of the executive branch. I do not advocate PRISM. I deny that you and I are competent to have a valid opinion on it, to advocate for or against it.

“[I]t is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And, within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense, the frequent need for absolute secrecy is, of course, self-evident.

“I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is. If the Constitution gives the Executive a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then, under the Constitution, the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order.” 12

II. Conservatives, libertarians, and tradition

Reaction to the program has not broken along normal partisan lines. In part, that is because many Republicans and Democrats staked out positions on identical programs (whether real or imagined) during the Bush administration, since which time the partisan polarities have reversed. Nevertheless, it’s more than simply a partisan interest that has fractured GOP reaction: This issue breaks down a fault line within the GOP between conservatives and libertarians. It is necessary to clarify this distinction, which has become blurry even in a moment in which one might expect it to snap into sharp focus.

Conservatives and Libertarians are not cut from the same cloth even though we happen to be woven into the same coat. Modern Progressives and Libertarians are estranged siblings, but alike the children of old Liberalism. 13Conservatives are now, as we were then, philosophically opposed to Liberalism and its progeny—not just over particular policies (over which Progressives and Libertarians, having taken very different paths in life, disagree), but in terms of their mindsets, analytical frameworks and its first-order principles. 14 In America today, by historical accident, the policies and second-order principles of Conservatives and Libertarians usually coincide against the the policies and second-order principles of progressives. For this reason, we are able to share space under the GOP umbrella, and “the marriage is generally a happy one notwithstanding the spouses’ occasional propensity to hurl the china at one another.” 15

Usually—but not always. Hence the fractured reaction to the NSA programs. Conservatives assess government programs first through the lens of tradition. 16 We believe that the government should be confined to its traditional and constitutional sphere of action. Libertarians, by contrast, assess government programs by measuring them against an abstract concept: “Liberty.” No matter how plain the traditional and Constitutional authority for a program, the Libertarian is inclined to oppose it if it encroaches onto his freedom. Thus, for example, the Conservative might support a draft in some circumstances, but the Libertarian cannot. Because progressives have spent a century expanding government far beyond its traditional sphere in ways that trample on personal liberty, conservatives and libertarians alike cry foul about “big government” in 2013, but we do so for different reasons and measured against different standards. And that difference becomes stark when we assess government actions that fall within its traditional sphere. In such cases, conservatives generally believe that it can, should, and must act robustly, vigorously, and efficiently. Libertarians—a little neurotic about government, to be frank—fear governmental vigor per se. 17 Government is no less apt to encroach on “liberty” in its traditional areas of concern, they would say, than in situations where its intervention is novel, and the libertarian does not (as we do) accept the legitimacy of the government’s action in this sphere simply because it is traditional.

On foreign policy, Libertarians tend to be more isolationist than Conservatives, who in turn are less interventionist than the so-called “neoconservatives.” So far as general domestic policy today is concerned, the Conservative and the Libertarian tend to align against the Progressive. 18 The break point tends to be over law enforcement policy; libertarians love the Warren Court’s criminal procedure revolution while conservatives are skeptical at best. 19) And it isn’t hard to understand why: It is important to realize that Libertarians do not simply oppose actual interference in their lives; they are skeptical of actions that could interfere in their lives, including those which are innocuous in themselves but which are susceptible to “abuse.” For the Conservative, by contrast, the criminal is the greater menace than the Constable.

Much the same considerations are at play with the NSA programs, which are artifacts of national security policy, and, therefore, involve foreign, domestic, and law enforcement policy. The programs do not actually interfere with anyone’s activities, but they impede the amorphous “liberty interest” of being able to do whatever one likes and believing that the government doesn’t know about it. For some Libertarians, that’s enough, and for the rest, that plus the potential for abuse adds up to rejection. It’s important to understand that the Libertarian isn’t exactly in the “pro-PRISM versus anti-PRISM” debate that I mentioned earlier: That debate weighs the programs against the liberty costs, but the Libertarian cannot get into that debate. She never weighs the ends because she has an a priori commitment that excludes the means, no matter how well she might like the end.

For the Conservative, however, even one inclined to reject my counsel and enter the “pro-PRISM versus anti-PRISM” debate, matters are much more straightforward. The NSA programs are an exercise at the core of a president’s legal powers and the height of their prudential authority; national defense, in turn, is the core of the legitimate functions of the federal government. Indeed, in an even more fundamental sense, it is the very thalweg of traditional governmental functions. 20 Conservatives therefore believe that government should act vigorously to discharge that responsibility, and that it should avail itself of every legal tool to hand.

“Legal” includes “constitutional”—”legal” means, so to speak, the sum total of the law, the result once all the relevant hierarchical authorities are stacked and their operations on one another are totalled. I will therefore conclude with a note about the Fourth Amendment issues that have been raised.

III. The NSA programs and the Fourth Amendment

To the best understanding that we can reliably gather, the two NSA programs gather only metadata—they are not akin to wiretaps but pen registers. The programs are predicated on the creation and retention of metadata by telephone and internet service providers such as Verizon and Google in the ordinary course of their business activities. The government then subpoenas the metadata and stores it; the conditions under which the government later accesses that data are disputed, but that dispute need not detain us, for the Fourth Amendment regulates how government may obtain data, not what it can do with data once it has been obtained. 21

The programs therefore do not involve the government obtaining “your data,but rather business records—data about you—that is created and retained by third parties from whom you buy services. This distinction is critical because, by breaking the Fourth Amendment chain between the person whose activities are described in the metadata and the government, it obviates any Fourth Amendment claim. A few years ago, Volokh Conspirator Nick Rosenkrantz suggested a helpful framework for assessing claims that constitutional rights have been violated that I would sum up as the “grammar” of a rights violation: “What right (precisely), of whom, has been violated by who?” It’s a deceptively-simple question, but the NSA program shows its bite. In the present case, the right against unreasonable searches or seizures of the whom’s person, house, papers, and effects was allegedly violated. But who violated that right? Did Verizon violate it? Surely not. They collected the data, but Verizon is a private actor; it can collect whatever data it likes, subject to statute law. Did the government violate it? How? They didn’t search or seize the who‘s person, house, papers, and effects. They may have searched and/or seized Verizon’s papers and effects, but that’s a whole different whom. The gravamen of the Fourth Amendment protests is not that Verizon‘s Fourth Amendment rights were trespassed!

Three analogies might help illustrate why the Fourth Amendment claim can’t work. Suppose that you routinely use the services of a particular caterer for your parties. The caterer keeps records of each event it supplies, including what foods and drinks, etc. The FBI is suspicious that your parties involve something untoward, and so they obtain the caterer’s records to build a case against you. No FBI agent has yet come within a hundred miles of your person, house, papers, or effects, and yet, for you to say that the NSA program violates the fourth amendment, you must be ready to assert that the FBI’s seizure of the caterer’s records are a violation of your Fourth Amendment rights. 22 Or suppose that you use FedEx for sending business mail, and let’s assume that FedEx logs each package that you send in its customer records. The Feds suspect that you’re up to no good. Now, if they intercept and open a package, without a warrant, your fourth amendment rights come into play. If, however, they obtain FedEx’s customer records, it’s hard to see how that violates your fourth amendment rights. They aren’t opening your mail, they’re obtaining data that describes your mail from a third party. That’s a precise analog of the PRISM program, so far as we currently understand it.

One more analogy. You are running an illegal scheme, and the Feds obtain your bank’s business records, which provide sufficient detail for the proecution to use the records at trial to prove your purchases of materials for the scheme. Can you move to suppress the records as having been obtained in violation of your Fourth Amendment rights? This last one is particularly important, because it isn’t a hypothetical: That was precisely the question faced by the Supreme Court in United States v. Miller, 23 and the answer was no, because you have no fourth amendment rights over third party data about you, which is precisely the issue here. 24 And the answer was again no in another case that is indistinguishable from this one, Smith v. Maryland.25Smith squarely holds that the customer has no legitimate expectation of privacy in the numbers dialed from his phone. Telephone users “typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” 26 That the calls originated in a person’s home is “immaterial”: “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” 27 This may be fresh panic, but it is settled law.

The coals under the kettle here, I think, are a number of developments in technology, society, and the
private sector that have enabled the government to do certain things without needing to use the tools regulated by the fourth amendment that it would preciously have been able to do only by using those tools. (Or at least, that it could not have easily done without those tools.) Very soon—if it hasn’t happened yet, and I would be surprised if it hasn’t—a state is going to convict someone for a crime based on evidence that the defendant publicly posted on their Facebook wall. No warrants needed. Or consider the ongoing question of whether and when the government may attach a GPS tracer to a person’s car. 28 That debate is moot in a world where, thanks to big data projects such as Google’s “Traffic,” the government doesn’t have to follow you or place a GPS tracker on your car. You have placed your own GPS tracker on your person (you call it a “phone”), and you have voluntarily supplied a constant and detailed account of your whereabouts to your service provider, information in which you have zero privacy interest, and which the government may acquire in a variety of ways.

So what happens? I have to suggest that the answer is “not much.” As I’ve said many times over the years, the Constitution isn’t airtight. 29 Orin Kerr’s equilibrium-adjustment theory is persuasive as an account of how the court thinks about growth in technology, 30 but the changes that I’m talking about aren’t advances in technology that make searches and seizures easier, as in cases like Kyllo or Jones. 31 Rather, these are changes that obviate the need to perform searches and seizures. (“Colonel Mustard just checked in at THE LIBRARY on foursquare,” and look, here’s a timestamped selfie that he tweeted in which he’s holding a candlestick. Fancy that!) And it’s anxiety about that fact that’s driving people to try to shoehorn the Fourth Amendment back into play.

When the Fourth Amendment was written, it’s only a slight exaggeration to say that the only way in which the government could learn a whole bunch of information about a person was by surveillance of the person, their home, and so forth. Unsurprisingly, then, the Fourth Amendment therefore limits the government’s surveillance of the person, their home, and so forth. Nowadays, however, people willingly turf over virtually every intimate detail of their lives to third parties, and in many cases, the government could simply buy all the information it needs on the open market. Or it could require by law that any business engaged in interstate telecommunications provide a copy of its transaction logs to the government. Indeed, a diligent prosecutor’s first step, one might think, is to Google the defendant. So, to repeat, modern technology has created the very real possibility that the government can achieve results that it could previously have achieved only by engaging in conduct that the Fourth Amendment forbade. This poses a dilemma, but I think that those who hope or expect to see the courts find a Fourth Amendment solution to it will be disappointed.

Cf. Gregory McAvoy, Controlling Technocracy 89-90 (1999) (technocrats “are skeptical of citizen’s ability to effectively participate in politics [and] maintain an optimistic view of policy experts’ moral and instrumental knowledge”; they believe that citizens are “overly emotional and self-serving, and therefore unable to participate in politics in a way that will allow society to achieve its ‘best interest,'” whereas the experts “can stand above partisan politics and make informed judgments about how public policy should be conducted”). ↩

See generally The day after, supra note __; Louis Wasserman, Handbook of Political “isms” 25-29 (1941). Eventually, a book-length treatment of social justice from the standpoint of conservative Catholics will rehearse this material in greater depth. ↩

At a conference several years ago, Judge Easterbrook attributed to Robert Heinlein the remark that governmental efficiency is the enemy of freedom, and there’s something to that idea. ↩

But see, e.g., In re Firearms debate, 3 MPA __ (2013). The Constitution is not a recipe, but a guideline; it marks out the general points of what the federal government can do, what the states may not do, how the federal government must act, and how it and the states may not act. There are any number of imaginable configurations of government that fit into this framework. Conservatives say that the government that should do those things that have been proper to the government in the Anglo-American tradition. Libertarians say that we can hang anything we like on the framework, and, that being so, the government that we hang on it should be small enough to maximize personal liberty, that it should be small enough that it won’t intrude directly and cheap enough that it won’t intrude indirectly by sucking too much money from our wallets. Thus, we both reject a general government-run healthcare system, for example, because that is alien to the traditional functions of government and intrudes on individual liberty. Of course, some judgement is involved, and it is very common that you encounter a conservative with libertarian leanings and vice versa. You don’t encounter too many pure Burkeians in America, not least because American conservatives have to find some way to live with a tradition that is profoundly Liberal in many regards. ↩

It was an amazing indication of how far libertarian ideas have come to be mislabelled as conservative ideas that the Indiana Supreme Court’s decision in Barnes v. Indiana, 946 N.E.2d 572 (Ind., 2011), was savaged by Republicans who would have thought themselves conservatives. See Simon Dodd, Regarding Barnes v. Indiana, May 25, 2011, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1852363. ↩

Cf. Calvin’s Case, 77 ER 377 (1608). The Declaration of Independence insists that governments are instituted to secure the people’s God-given rights, and this is too often misunderstood, especially by Libertarians, who sometimes appear to believe it to say that governments are instituted to secure rights against governments. The first and primeval enemy against which governments are instituted to protect the rights of the individual and the community of individuals is the foreign power. ↩

If it were otherwise, a slew of cases from United States v. Leon, 468 U.S. 897 (1984), on through Herring v. United States, 555 U.S. 135 (2009), were wrongly-decided. The reason that the court is able to rule “no harm no foul” in such cases is that that the exclusionary rule is not the substance of the Fourth Amendment but rather a doctrinal fence created by judges to guard against violations of that substance that would otherwise be difficult to police, and what courts have created, courts can relax. Cf. Judicial conservatism and the Obamacare cases, 2 MPA __, __ (2012) (endorsing such “doctrinal fences”). ↩